Alexander M. Gay

This appeal concerned the constitutionality of section 12 of the National Security and Intelligence Committee of Parliamentarians Act, which limits parliamentary privilege, specifically freedom of speech and debate, for members of the Committee regarding the disclosure of classified information.

The application judge had declared section 12 ultra vires Parliament.

The Court of Appeal allowed the appeal, holding that Parliament possesses the plenary legislative authority under section 18 of the Constitution Act, 1867 to define and limit its own privileges, including freedom of speech and debate, without requiring a constitutional amendment.

The court found that section 12 is intra vires the federal Parliament, emphasizing that Parliament can legislate to define the scope of its own powers and privileges, especially when members voluntarily accept such limits.

The parties brought cross-motions arising from examinations for discovery in an action concerning a cancelled procurement process for visa application centres.

The defendant sought further financial documents from the plaintiff, which the court dismissed, finding the plaintiff had already produced all existing relevant documents.

The plaintiff sought answers to several refused questions.

The court ordered the defendant to disclose the name of its forensic accountant or undertake not to call them at trial, produce communications with third parties as common interest privilege did not apply, answer whether it could cancel the procurement at will, and produce a 2005 contract.

The court upheld the defendant's refusal to disclose the contract's Approval Value due to Cabinet confidence privilege.

Following the dismissal of the plaintiff's defamation claims, the successful defendants (the Attorney General of Canada and an individual) sought partial indemnity costs of $16,084.

The plaintiff objected to the hourly rates proposed for Crown counsel, arguing they exceeded internal department rates and violated the indemnity principle.

The court rejected this argument, applying the principle that costs for salaried government lawyers should be fixed as though they were independent outside counsel.

The court found the proposed rates reasonable and awarded the requested costs.

The Court of Appeal for Ontario addressed whether "termination of employment for any reason that does not relate to a breach of discipline or misconduct" in s. 236(3) of the Federal Public Sector Labour Relations Act (FPSLRA) includes constructive dismissal.

The appellant, an undesignated separate agency, sought to dismiss the employee's constructive dismissal claim for lack of jurisdiction, arguing it should be resolved via grievance.

The Court affirmed the motion judge's decision, holding that constructive dismissal falls within the broad meaning of "termination for any reason" under s. 236(3), thereby preserving the employee's right to sue in court, as undesignated separate agency employees lack access to third-party adjudication for non-disciplinary terminations under the FPSLRA.

The appeal was dismissed.

The appellant, a Senator, sued the Senate and the Attorney General of Canada for damages arising from his suspension from the Senate for allegedly claiming inappropriate expenses.

The Senate successfully moved to dismiss the action against it for lack of jurisdiction based on parliamentary privilege.

On appeal, the Court of Appeal upheld the dismissal, finding that the Senate's actions fell within established categories of parliamentary privilege, including the power to discipline its members, administer its internal affairs, and control parliamentary proceedings and freedom of speech.

The Court held that parliamentary privilege immunized the Senate's actions from judicial review, even where unlawful conduct or Charter breaches were alleged.

The defendant in a $195 million procurement dispute served summonses on three non-party witnesses for examination prior to a summary judgment motion.

The non-parties and plaintiffs moved to quash the summonses, arguing they were an abuse of process due to short notice, failure to provide relevant pleadings, and overly broad document requests.

The court agreed, finding the defendant's conduct in serving the summonses and refusing a brief postponement constituted an abuse of process.

The summonses were quashed, and the defendant's motion to compel answers to refusals was dismissed.

The appellant, a law professor with expertise in constitutional law and national security, appealed a decision denying him public interest standing to challenge the constitutionality of section 12 of the National Security and Intelligence Committee of Parliamentarians Act.

Section 12 prevents Parliamentary privilege from being invoked if a member of the Committee is prosecuted for disclosing protected information.

The application judge had denied standing without addressing the merits.

The Court of Appeal allowed the appeal, finding the application judge erred in principle by requiring factual context and diversity of viewpoints for a pure question of constitutional law regarding Parliament's competence to abridge Parliamentary privilege without constitutional amendment.

In an action concerning a procurement process for Visa Application Centre services, the parties sought to settle the terms of a confidentiality order governing the disclosure of Third Party Information.

The sole issue was the wording of a paragraph dictating the scope of submissions that affected Third Parties could make on a future motion to determine confidentiality.

The plaintiffs argued for a narrower scope, while the defendant and Third Parties argued for a broader scope.

The court adopted the plaintiffs' proposed wording, finding it addressed issues clearly relevant to the Third Parties without tying the hands of the judge hearing the future motion, but noted this did not necessarily preclude Third Parties from raising other issues.

The plaintiffs brought a motion for particulars and an extension of time to deliver a reply, achieving mixed success.

The court ordered the defendant to provide one critical particular regarding the value of a contract, while dismissing the other requests.

The parties could not agree on costs.

Given the mixed success and the early stage of the case-managed action, the court ordered that the costs of the motion be payable in the cause.

Senator Michael Duffy sued the Senate of Canada for over $7 million in damages, alleging his suspension and denial of expenses were politically motivated, unconstitutional, and violated his Charter rights, despite his acquittal on criminal charges.

The Senate moved to dismiss the action, asserting parliamentary privilege.

The court granted the Senate's motion, finding that the Senate's decisions regarding member discipline, internal affairs, proceedings, and freedom of speech were protected by parliamentary privilege and thus immune from judicial review.

Multiple procedural motions arose in two related aviation negligence actions seeking recovery of insured losses after aircraft hydroplaned and left runways at Ottawa International Airport.

The plaintiffs sought coordinated case management, common discoveries and production, and trial management orders, while the defendants challenged the adequacy of the plaintiffs’ affidavit of documents and disputes arose regarding discovery scheduling.

The court ordered that the actions proceed under joint case management with common discoveries and productions on overlapping issues and removed the deemed undertaking as between the two proceedings.

Leave was granted for extended examinations for discovery due to the limited availability of a key pilot witness.

The court directed further review of the plaintiffs’ affidavit of documents and reserved remaining issues, including sanctions and costs, for later determination.

Following the dismissal of the plaintiff’s claim, the court determined the appropriate costs award.

The successful defendants sought $12,944.96 in costs on a partial indemnity basis, while the plaintiff argued that success was divided because part of the claim had been found premature and sought a reduced award.

The court held that the defendants were the successful party and that the general rule awarding costs to the successful party applied.

The hourly rates and time expended by defence counsel were found to be reasonable.

Costs were fixed in favour of the defendants.

The defendants moved under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the plaintiff’s defamation action arising from allegations made during his service as a Canadian Armed Forces officer.

The court held that the claim arose directly from the employment relationship and should first be addressed through the military grievance process under the National Defence Act framework.

Because that statutory grievance procedure was capable of addressing the underlying issues, the civil action constituted an abuse of process and was premature.

The court also held that certain pleaded claims relating to publications and broadcasts were barred due to non-compliance with the notice requirements of the Libel and Slander Act.

The action was dismissed, with alternative findings that it could be stayed pending determination of entitlement to compensation for a service-related injury and that specified paragraphs of the pleading were struck.

The defendant appealed a master's order requiring production of a lawyer's handwritten notes taken during a voluntary interview with the plaintiff when he was a potential witness in related litigation.

The defendant argued the notes were protected by litigation privilege as counsel's work product.

The court held that, to the extent the notes merely recorded the plaintiff's statements, litigation privilege did not apply because a party cannot claim confidentiality over statements made by the opposing party.

However, portions of the notes reflecting counsel's commentary, strategy, or analysis could remain privileged and be redacted.

The appeal was dismissed and the master's order permitting production with potential redactions was upheld.

A costs endorsement following prior proceedings between a self-represented plaintiff and multiple defendants including federal officials and the Attorney General of Canada.

The parties consented to the disposition of costs.

The court fixed costs in favour of the defendants in a nominal amount payable by the plaintiff forthwith.

The Crown appealed a Small Claims Court judgment ordering it to reimburse a former public servant for pool maintenance expenses incurred during a foreign posting in Dubai.

The Crown argued the Superior Court lacked jurisdiction under the Public Service Labour Relations Act, the claim was statute-barred, and the employee was bound by an Occupancy Agreement.

The Divisional Court dismissed the appeal, finding the Crown was estopped from relying on the statutory grievance ouster because it failed to provide the employee with the necessary grievance information.

The court also held the action was commenced within the limitation period and the Crown had implicitly accepted the employee's caveat regarding pool expenses.

The defendants brought a summary judgment motion seeking dismissal of a negligence action as statute‑barred under the Limitations Act, 2002.

The plaintiff alleged negligence by correctional authorities in relation to the murder of her son while he was incarcerated, arguing that the claim was only discovered after a coroner’s inquest and report revealed additional information about officer misconduct and possible obstruction of the police investigation.

The court held that the claim was discovered when the plaintiff received the Board of Investigation report in 2005, which identified failures by correctional officers to follow institutional policies and procedures.

Later information from the inquest and coroner’s report merely provided further evidence supporting an already discoverable claim.

There was no evidence of fraudulent concealment that would suspend the limitation period.

The action commenced in 2010 was therefore outside the two‑year limitation period.

The police obtained warrants to search the respondents' premises for evidence of offences under the Radiocommunication Act relating to the decoding of encrypted satellite signals.

The trial judge set aside the warrants and awarded Charter damages, finding the police acted maliciously by failing to disclose conflicting out-of-province case law in the information to obtain and by not considering alternatives to a search warrant.

The Court of Appeal allowed the appeal, holding that the police had no duty to disclose non-binding conflicting case law or to consider alternative enforcement mechanisms.

The court found no basis for setting aside the warrants or awarding damages, and dismissed the respondents' action.

The appellant, a U.S. corporation, submitted a bid for a military procurement contract.

When another bidder was awarded the contract, the appellant filed a complaint with the Canadian International Trade Tribunal (CITT) alleging violations of the Agreement on Internal Trade (AIT).

The CITT ruled the appellant had standing, but the Federal Court of Appeal quashed the ruling.

The Supreme Court of Canada dismissed the appeal, holding that non-Canadian suppliers do not have standing before the CITT to bring a complaint under the AIT, as the AIT is a domestic free trade agreement and its procurement provisions apply only to Canadian suppliers.

The appellant appealed a motion judge's decision dismissing his claim against the government for alleged unfair treatment in his employment.

The appellant argued he should be considered a whistleblower.

The Court of Appeal upheld the motion judge's finding that the appellant was not a whistleblower and that his complaints must be grieved or arbitrated under the applicable labour relations statutes, as they did not fall within the court's residual jurisdiction.

The appeal was dismissed with costs.